The European Court of Human Rights: A beacon of hope
This article by EHRAC Lawyer Kate Levine originally appeared in Institutionally blind? International organisations and human rights abuses in the former Soviet Union, a Foreign Policy Centre publication launched on 9 February 2016, ed. Adam Hug.
With jurisdiction over 800 million inhabitants of the member states of the Council of Europe, the European Court of Human Rights (ECtHR) based in Strasbourg, has been referred to as the “linchpin” of human rights protection in Europe. The European Convention on Human Rights (‘European Convention’), which the ECtHR seeks to enforce, binds States parties to a common set of standards designed to secure fundamental rights. Together, the ECtHR and the European Convention provide a “unity of purpose” for member States of the Council of Europe. Now in its 57th year, the ECtHR’s ability to withstand challenges to this common purpose from some of the Council of Europe’s newest (and oldest) members is being sorely tested. This essay considers aspects of the ECtHR’s relationship with Russia, Ukraine, and the South Caucasus: the lack of political will to properly implement judgments, the shrinking space for human rights defenders, and increasing State support for so-called ‘traditional values’ are identified as three of the most pressing concerns for the ECtHR in this region. Notwithstanding the difficulties inherent in addressing these issues, the ECtHR remains a beacon of hope for continued and improved “unity of purpose” (that is, the effective protection of human rights) in the States of the former Soviet Union, and throughout the Council of Europe.
Expanding the reach of the ECtHR
Originally conceived in 1949 as a project for post-war cooperation among 10 Western European States, the Council of Europe has since grown to encompass 47 member states. Pursuant to Article 1(a) of the Statute of the Council of Europe, member states agree to strive for greater unity for the purpose of “safeguarding and realising the ideals and principles which are their common heritage.” The European Convention, which entered into force in 1953, sought to define these ideals and give concrete expression to the principles set out in the non-binding Universal Declaration on Human Rights of 1948. Established in 1959, the ECtHR was tasked with monitoring respect for Convention rights by member states. On the eve of the collapse of the Soviet Union in 1991, the ECtHR’s jurisdiction extended to 23 states. Over the next nine years, its jurisdiction expanded to include a further 18 newly independent states, the majority of which had been a part of the Soviet Union or Eastern Bloc (including Russia, Ukraine and Georgia). In the first decade of the 21st century, an additional six states ratified the European Convention (including Azerbaijan and Armenia). Expansion of the geographic scope of the ECtHR’s jurisdiction has facilitated access to justice for individual victims of human rights violations, but has also (unsurprisingly) increased the burden on the ECtHR’s capacity to respond effectively to a significantly larger caseload.
Enabling access to justice
Affording recourse to the ECtHR as a forum for international justice been particularly significant for victims of human rights violations arising in the context of armed conflict in the former Soviet Union. The past two and a half decades have tragically seen a number of violent conflicts in this region. For example: in Russia (the first and second Chechen wars, and the on-going security operations in the North Caucasus); between Azerbaijan and Armenia in relation to the disputed Nagorno-Karabakh territory; in Georgia (the August 2008 war with Russia over South Ossetia and Abkhazia); and most recently, in Ukraine, following the annexation of Crimea and the outbreak of fighting in Eastern Ukraine.
In Russia, the actions of security forces in the second Chechen war (which commenced in September 1999) and subsequent security operations in other parts of the North Caucasus, gave rise to hundreds of applications to the ECtHR on behalf of victims and their families. In February 2005, the ECtHR issued its first judgments (and the first of any international judicial body) in cases concerning the second Chechen war. The ECtHR found Russia responsible for extra-judicial killings, torture, enforced disappearances, and failing to properly investigate these crimes; it also confirmed the systemic nature of human rights abuses by Russian security forces in Chechnya. To date there are over 250 judgments from the ECtHR in which Russia has been found responsible for serious and systemic human rights violations in the context of the second Chechen war and security operations in the North Caucasus. Even in the absence of changes to Russian law and policy resulting from these judgments (discussed further below), the body of Chechen cases represents the measure of justice, accountability and redress (including through the payment of moral damages) for individuals whose appeals to the domestic authorities were largely met with disbelief and denial. As emphasised by one of the applicants in the ECtHR case concerning Russian responsibility for the massive loss of civilian life during the Beslan school siege in 2004:
“we were told that we would find justice in Strasbourg. This is our only hope. It comforts us that there is a place where everything is done by the rule of law, and where our evidence will be considered when the decision is made.”
The ECtHR very recently issued judgments in two cases (Chiragov and Others v. Armenia and Sargsyan v. Azerbaijan) relating to the rights of families from Azerbaijan and Armenia who were forced to flee their homes as a result of the 27 year conflict in and around the disputed Nagorno-Karabakh region. The ECtHR underlined that the glacial pace of peace negotiations (under the auspices of the OSCE Minsk Group) did not absolve the two States from taking other measures to ensure the property rights of individuals directly impacted by the conflict. The ECtHR recommended that each State establish a property claims mechanism through which the applicants (and hundreds of thousands of others in the same situation) could seek restoration of their property rights and compensation for their loss of enjoyment (Chiragov, para. 199, and Sargsyan para. 238). Although the judgments have yet to be implemented, their potential to add much needed political (and legal) impetus for a swift resolution of the conflict and access to redress for victims, should not be underestimated.
Challenges facing the ECtHR
Failure to implement ECtHR judgments
The ECtHR has faced countless challenges to its mission since its creation. Political resistance to ensuring effective implementation of its judgments (particularly those raising systemic violations) is arguably among the most grievous, and is of serious concern for the ECtHR, the Committee of Ministers (the Council of Europe’s political body tasked with supervising execution of the ECtHR’s judgments), and the individuals for whom Strasbourg is the only avenue of redress when structural violations at the domestic level prevail. In two recent reports on the execution of the ECtHR’s judgments, the Committee of Ministers and the Parliamentary Assembly of the Council of Europe identified Russia and Ukraine as two of the nine States with the greatest number of “leading judgments” that have yet to be enforced. Among the structural problems identified in these unexecuted judgments are: lack of accountability for the actions of the security forces in the North Caucasus; prohibition of LGBT assemblies in Russia; and torture and ill-treatment in police custody and failure to investigate these crimes in Russia and Ukraine.
In an ominous development on 14 December 2015, President Putin signed into law a new piece of legislation that allows the Russian Constitutional Court to declare rulings of international bodies “impossible to implement”. Although not the first legislative attempt to curb the efficacy of the ECtHR in Russia, the new law is unprecedented in the history of the Convention in that it seeks to deny the enforceability of the ECtHR’s judgments (as opposed to merely challenging the relationship between the ECtHR and the domestic courts, which previous Russian laws have done, and which other Council of Europe members continue to do, including the UK). According to one of its sponsors in the Russian Duma, the main aim of the new law is to “safeguard Russian legal sovereignty”; an objective which strongly echoes the efforts of Prime Minister Cameron and others in the United Kingdom to redraw the relationship with Strasbourg so as to “protect” the supreme voice of Parliament and the Supreme Court. One of the driving forces behind political opposition to Strasbourg in the United Kingdom is the Prime Minister’s reputed distaste for the ECtHR’s finding that the blanket ban on prisoner voting contravenes the European Convention, as manifested in the persistent failure of the UK to implement the ECtHR’s judgments – for example Hirst v UK (No.2) and Greens and M.T. v UK – on this issue. Disturbingly, there is evidence that the new law in Russia is not only inspired by the United Kingdom’s pushback against the ECtHR’s judgments, but is also motivated by Strasbourg’s ruling against Russia in relation to prisoner voting.
In Ukraine, the political reforms driven by the events of Euromaidan in 2014 have led to some positive developments in the implementation of ECtHR judgments. One such example is the reinstatement of former Supreme Court Judge, Oleksandr Volkov in February 2015. Mr Volkov’s politically motivated dismissal in 2010 led the ECtHR to find violations of his right to a fair trial and respect for private life, order his re-instatement and call on Ukraine to reform its system of judicial discipline. Further, in cooperation with the Council of Europe, the new Government is implementing a project of widespread reform of the judiciary, in light of the ECtHR’s judgment in Volkov v. Ukraine and another similar case (Salov v. Ukraine).
Notwithstanding these positive developments, the failure to resolve the conflict in Eastern Ukraine poses a challenge for the ECtHR. As noted above, there are already more than 1,400 individual applications lodged before the ECtHR relating to the hostilities in Eastern Ukraine and the events in Crimea. That these situations have generated such a significant volume of cases in under two years is not surprising, given the deeply political nature of the conflict, the ongoing ‘anti-terrorist operation’ in Donbas, and the refusal of Russia to acknowledge its role in these events. The resulting applications add to an existing backlog of cases, the efficient and speedy processing of which has been (and remains) a key focus of intergovernmental efforts to reform the Strasbourg machinery. Change has come through, for example, Protocol No. 14 to the Convention (which entered into force in 2010, and introduced new judicial formations for the simplest cases and a new admissibility criterion), the introduction of a “priority policy” in 2009 (pursuant to which applications are dealt with based on the importance and urgency of the issues raised, as opposed to the date on which they were received by the ECtHR), and the Interlaken, Izmir and Brighton Declarations of 2010, 2011 and 2012 respectively (one of the results of which was the adoption of the rather contentious Protocol No. 15). Significant progress has been made so far; for example, the backlog of manifestly inadmissible applications has been cleared, and the total number of applications pending before a judicial formation has more than halved, from around 152,000 in 2012 to 64,850. Among the remaining challenges are the rising number of “priority” applications (and many from eastern Ukraine may fall into this category if they deal with, for example, risks to the life and health of applicants), and the backlog of non-priority non-repetitive applications. While the allocation of additional resources may help to increase capacity within the ECtHR, the effective implementation of judgments at the national level is also clearly fundamental to reducing the overall number of applications submitted to Strasbourg.
Shrinking space for human rights defenders
Alongside political resistance to implementation of the ECtHR’s judgments, the shrinking space for human rights defenders is also cause for concern for the ECtHR. Following President Putin’s return to the Kremlin in 2012, there have been renewed efforts by the state to stigmatise human rights activists (labelling them as stooges of ‘Western’ interests) and constrict the space within which civil society can operate. These efforts are concentrated on a raft of laws designed to severely limit cooperation between Russian NGOs and the West, and clamp down on the legitimate exercise of the rights to freedom of association, assembly, and expression in Russia. Two such laws, the 2014 ‘Foreign Agents’ law and the law on ‘undesirable organisations’, have been heavily criticised as falling foul of international standards on the rights to freedom of association, expression, and the derivative right of the access to foreign funding. In response to the ‘Foreign Agents’ law, 14 Russian NGOs submitted a joint application to the ECtHR in 2013 alleging violations of their rights to freedom of association and expression as a result of the law. The ECtHR has yet to communicate the application to the Government. Although this delay is regrettable, it is hoped that the application may ultimately lead to an objective, irrefutable finding of the law’s contravention of the European Convention, adding to existing (non-binding) statements from the international community.
Numerous applications have also been submitted to the ECtHR concerning alleged unlawful violations of the rights to freedom of expression and peaceful protest; many in relation to demonstrations against alleged fraud during the 2011 legislative elections and the 2012 Presidential election in Russia, the adoption and implementation of the Federal ‘Anti-LGTBI’ law, and the war in eastern Ukraine. In a recent judgment in one of these cases, Frumkin v. Russia, the ECtHR found violations of the applicant’s right to freedom of assembly and association, resulting from his unlawful arrest, detention, and ensuing conviction after his participation in one of the ‘Bolotnaya Square’ protests in May 2012. The ECtHR emphasized the chilling effect of the applicant’s treatment on participation in peaceful demonstrations and engagement with opposition politics in Russia, signalling a robust and timely statement in defence of the right to peaceful protest which is under severe pressure (para. 141).
In Azerbaijan, the Government has overseen a wave of politically motivated arrests and prosecutions starting in mid-2014, preceded by a tightening of NGOs laws. In less than two years, the state has succeeded in all but crippling the country’s independent civil society. It is widely believed that the persecution of particularly high profile human rights defenders, including Intigam Aliyev, Rasul Jafarov and Leyla and Arif Yunus, was motivated by their engagement with the ECtHR and other Council of Europe mechanisms. For example, the Council of Europe Commissioner for Human Rights has publically stated that the unlawful arrest, detention and conviction of these activists (among others) was retribution for their tireless work promoting human rights through the ECtHR, the Committee of Ministers and the Parliamentary Assembly. The ECtHR has prioritised the applications dealing with their arrest, detention and conditions of detention, and communicated them to the Government within a few months from when they were lodged. These cases are now awaiting judgment. Several of these applications raise the claim that their arrest and detention was politically motivated (contrary to Article 18 of the Convention). Unfortunately not all cases concerning the repression of critical voices have been communicated as quickly (for example, several applications relating to the arrest and prosecution of youth activists belonging to the NIDA Civic Movement were recently communicated, two years after being lodged). That said, the recent decision of the Secretary General of the Council of Europe to launch an inquiry (under Article 52 of the Convention) into Azerbaijan’s compliance with its rights and obligations will continue to focus international attention on the Government’s repression of civil society. Although there have been at least eight inquiries under Article 52, this is the first launched by the current Secretary General (who took office in 2009) and will (uniquely) involve the dispatch of a delegation from Strasbourg to Azerbaijan. Whatever the outcome of the inquiry, it is hoped that the findings may provide further impetus for calls to release critics of the Government who are unlawfully detained, including, for example, Ilgar Mammadov, whose detention was found to be unlawful by the ECtHR but who remains in prison despite consistent calls for his release.
Attacks on LGBTI rights
Alongside the crackdown on human rights defenders, attacks against supporters of LGBTI rights and the LGBTI community are especially prevalent in Russia and the South Caucasus. Low levels of respect for LGBTI rights mirrors the resurgence in popular support for so-called ‘traditional values’ (referring to, for example, stereotyped definitions of ‘family’ and ‘morals’, often informed by the policies and preferences of the Orthodox Church, and encouraged by supportive statements from the political elite). In June 2013 Russia passed a federal law effectively legalising discrimination based on sexual orientation. Armenia threatened to do the same. Common to all governments in the region is a lack of political will to take anti-LGBTI violence seriously, whether perpetrated by state actors or private individuals. Those targeted by state and non-state entities are increasingly invoking the assistance of the ECtHR. In response, the ECtHR has vigorously defended the right to freedom of assembly for LGBTI persons; for example, in the landmark judgment of Alekseyev v. Russia, the ECtHR found violations of the applicant’s right to peaceful assembly resulting from the state’s repeated ban on ‘gay pride’ marches that he had organised, as well as breaches of the right to an effective remedy and the prohibition of discrimination. When it was published in 2010, the judgment was the most significant statement from the ECtHR yet on the need to protect the right to freedom of assembly for LGBTI people. In a subsequent judgment, Identoba v. Georgia (paras. 68-81), the ECtHR has further developed its support for LGBTI rights through its finding that homophobic attacks against peaceful protestors violated the prohibition against ill-treatment and constituted discrimination on the grounds of sexual orientation. Among the cases relating to LGBT rights which are currently pending before the ECtHR, there are a further two against Georgia: one concerning the violent and discriminatory treatment of LGBT activists during a raid of their offices by the police, Aghdgomelashvili and Japaridze v. Georgia; and the other relating to the failure to investigate violence by counter-demonstrators against people holding a peaceful protest in support of the International Day Against Homophobia, Women’s Initiative Supporting Group v Georgia.
Unfortunately, the ECtHR’s judgments have not resulted in measurable improvements in respect for LGBTI rights in Russia. The majority of peaceful demonstrations continue to be banned, and in January 2016 the Duma considered yet another homophobic law which proposes jail terms for public displays of “non-heterosexual orientation or gender identity”. In contrast, while public support for LGBTI rights remains low in Georgia, there have been positive developments in the judicial and legislative arenas as part of political negotiations with the EU. For example, the recent introduction of a law prohibiting discrimination on all grounds (including sexual orientation and gender identity) was, in part, the result of EU requests made in the context of negotiations on visa liberalisation.
Efforts by Russia and some of its neighbours to repress human rights defenders, and promote an agenda of ‘traditional values’ at the expense of the rights and obligations enshrined in the European Convention, have been met with fierce resistance by the ECtHR. Similarly, opposition from Russia and other parts of the former Soviet Union (and beyond) to execute especially strategic ECtHR judgments has in part fuelled efforts to strengthen the ECtHR framework (most recently evidenced by the Brussels Declaration which was adopted by all Council of Europe member states in March 2015). The Declaration focuses on improving implementation of ECtHR judgments, and sets out, for example, a range of proposals on how states could better engage judicial and legislative bodies in this process. Ultimately, the practical realisation of the Declaration’s proposals, as with implementation of judgments, remains a question of political will. This suggests that reciprocity (for example, from one member state to another, and between them and international institutions) is a necessary component of the process of using the ECtHR and other international mechanisms to achieve positive change at the national level.
In Georgia, for example, we have seen that tying adherence to Convention standards with mutually beneficial political goals can yield positive results for human rights. Given the current state of diplomatic relations between Russia and the West, it may be a while before there will be meaningful opportunities to use the ECtHR’s judgments as leverage in the context of political dialogue with Moscow. Whatever the future holds for Russia and the wider former Soviet Union region, it is crucial that the individuals whose rights are protected by the Convention are able to access the ECtHR. For them and for us all in the Council of Europe the ECtHR remains a beacon of hope for the effective protection of our human rights whatever politics prevail.
 There are at least 2,000 individual applications pending before the ECtHR concerning grave human rights abuses arising from the 2008 Georgia-Russia war, in addition to an inter-state case brought by Georgia against Russia alleging responsibility for Convention violations as a result of the war. Further, over 1,400 individual applications have been lodged with the ECtHR (the majority have been brought against Russia and Ukraine) relating to the annexation of Crimea and the war in eastern Ukraine.
Although Protocol 15 has yet to enter into force, there is fierce criticism of the reforms that it will herald (for example, reducing the time limit for submitting applications from six to four months). A group of leading NGOs who represent applicants before the ECtHR voiced their concerns in a joint statement when the Protocol was opened for signature.
Institutionally blind? International organisations and human rights abuses in the former Soviet Union examines whether some of the major international institutions covering the former Soviet Union are currently meeting their human rights commitments. The publication shows how the independence and integrity of institutions defending human rights in the region are under attack from outside and within, sometimes buckling under the pressure.